J-S29010-21
2022 PA Super 51
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PARRIS LAVON HARPER :
:
Appellant : No. 166 EDA 2019
Appeal from the Judgment of Sentence Entered September 20, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001419-1998
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY PANELLA, P.J.: FILED MARCH 28, 2022
This case calls upon us to revisit the proper sentencing of a juvenile
convicted of second-degree murder. Specifically, we are asked to determine
whether a sentence of thirty-five years to life is legal, and if so, whether the
trial court abused its discretion in fashioning the sentence. In performing this
analysis, we discuss the impact of the recent decision in Commonwealth v.
Felder, 18 EAP 2018 (Pa. filed Feb. 23, 2022). After a careful review, we
affirm.
On December 11, 1997, Parris Lavon Harper pointed a gun at the neck
of David Purvis. At the time of the incident, Harper was less than one month
away from his eighteenth birthday. With the gun pointed at Purvis, Harper
stated, “give me what you got,” ostensibly referring to drugs that Purvis had
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* Former Justice specially assigned to the Superior Court.
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in his possession. Purvis then ran and Harper fired his gun several times.
Purvis suffered three gunshot wounds and died as a result.
On June 17, 1999, at the conclusion of a jury trial, Harper was found
guilty of second-degree murder and robbery. The court sentenced Harper to
life imprisonment without parole on August 3, 1999. On June 14, 2017, the
trial court vacated the life sentence pursuant to Miller v. Alabama, 567 U.S.
460 (2012) (holding that mandatory sentences of life without parole for
juvenile offenders violate the Eighth Amendment).
On September 20, 2018, after several hearings, the trial court
resentenced Harper to serve a term of incarceration of thirty-five years to life.
Harper filed a timely post-sentence motion. The trial court held a hearing and
ultimately denied the motion on December 12, 2018. This timely appeal
followed.1
Harper presents three issues in his appeal. The first two issues attack
the legality of his sentence. His final issue raises a challenge to the
discretionary aspects of his sentence.
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1 Although Harper purported to appeal from the order denying his post-sentence motion, the appeal properly lies from the judgment of sentence
entered on September 20, 2018. We have corrected the caption accordingly.
See Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super.
2001) (en banc) (explaining that in a criminal action, appeal properly lies from
the judgment of sentence made final by the denial of post-sentence motions).
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Harper first argues that his minimum sentence of 35 years is a de facto
sentence of life without parole (“LWOP”). He contends United States and
Pennsylvania precedent require that, unless the Commonwealth can establish
beyond a reasonable doubt that a juvenile is incapable of rehabilitation, the
juvenile must be accorded the opportunity to be released with the chance for
a meaningful and fulfilling life. In essence, the question before us is at what
point does a minimum term-of-years sentence become a de facto life
sentence?
We have determined that a claim that the trial court imposed an
impermissible de facto life sentence in violation of Miller constitutes a
challenge to the legality of sentence. See Commonwealth v. Clary, 226 A.3d
571, 580 (Pa. Super. 2020). A challenge to the legality of sentence is an attack
upon the power of a court to impose a given sentence. See Commonwealth
v. Lipinski,
841 A.2d 537, 539 (Pa. Super. 2004). Legality of sentence issues
occur generally either (1) when a trial court’s traditional authority to use
discretion in the act of sentencing is somehow affected; and/or (2) when the
sentence imposed is patently inconsistent with the sentencing parameters set
forth by the General Assembly. See Commonwealth v. Foster,
17 A.3d 332,
342 (Pa. 2011). The question of whether a claim implicates the legality of a
sentence presents a pure question of law. See
id. at 340 n.13. Issues relating
to the legality of a sentence are reviewed de novo, and our scope of review is
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plenary. See Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super.
2013).
A trial court may not impose a term-of-years sentence on a juvenile
convicted of homicide that equates to a de facto LWOP sentence unless it
finds, beyond a reasonable doubt, that the juvenile is incapable of
rehabilitation. See Clary, 226 A.3d at 581. We have distinguished between
sentences that constitute de facto LWOP sentences and those that do not. See
Commonwealth v. Foust,
180 A.3d 416, 438 (Pa. Super. 2018). Specifically,
in Foust, we determined that while a 150–year sentence is the equivalent of
a de facto LWOP sentence, a 30-years to life sentence does not constitute a
de facto LWOP sentence. See
id.
In guiding our determinations regarding particular minimum sentences,
we have observed that a sentence is not a de facto LWOP sentence where
there is “some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Commonwealth v. Bebout, 186
A.3d 462, 467 (Pa. Super. 2018) (citation omitted). Therefore, “it must at
least be plausible that one could survive until the minimum release date with
some consequential likelihood that a non-trivial amount of time at liberty
awaits.”
Id. at 468 (emphasis in original). Conversely, if no meaningful
opportunity for parole exists, the sentence constitutes a de facto LWOP
sentence. See
id. Accordingly, we have considered the age the appellant
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would be eligible for parole to determine whether the sentence is the
functional equivalent of LWOP. See id.
In Clary, we offered the following summary of several of our decisions
that addressing concerns that the minimum sentence imposed amounted to a
de facto sentence of LWOP:
In Commonwealth v. Anderson, 224 A.3d 40, 47-48 (Pa.
Super. 2019), a post-Miller case, the appellant received a
sentence of 50 years’ to life imprisonment upon resentencing.
[See Anderson, 224 A.3d at 41-42]. Because Anderson was 17
years old at the time he began serving his sentence, he would,
thus, be eligible for parole at age 67. Id. at [46-47]. We,
therefore, concluded that his sentence was not the functional
equivalent of LWOP. Id. at 47-48. See also
Bebout, supra at
468 (concluding the appellant’s 45 years to life sentence in which
he would be eligible for parole at the age of 60 was not de facto
LWOP); Commonwealth v. Lekka, 210 A.3d 343, 357-358 (Pa.
Super. 2019) (concluding that because the appellant’s term of 45
years’ to life imprisonment rendered him eligible for parole at the
age of 62, it was not a de facto LWOP sentence); Foust, supra
at 438, 441 (concluding that the appellant’s two consecutive 30
year to life sentences were not a de facto LWOP sentence and
noting that even considering [the a]ppellant’s aggregate
sentence, he had a chance of being released into society in his
70s).
Clary, 226 A.3d at 581. Further, in Clary, we determined that because the
appellant was eligible for parole for his first-degree murder conviction at the
age of 58, he had a “meaningful opportunity to obtain release,” and his
sentence could not be considered de facto LWOP.
Id. at 582.
Applying these considerations here, we likewise conclude that Harper
did not receive a de facto LWOP sentence. The record reflects Harper
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committed the murder in December 1997, which was just prior to his
eighteenth birthday on January 9, 1998. Harper was convicted and sentenced
in the summer of 1999, when he was 19 years old. Initially, he received a
mandatory sentence of life imprisonment. On September 20, 2018, he was
resentenced to a term of 35 years to life. Accordingly, Harper will be
approximately 54 years old when his minimum sentence expires, and he
becomes eligible for parole. Therefore, Harper has a meaningful opportunity
to obtain release at the age of 54 and there is a likelihood that a non-trivial
amount of time at liberty awaits. Accordingly, his claim that the minimum
term amounts to a de facto LWOP sentence lacks merit.
In addition, we observe that while this appeal was pending, our Supreme
Court issued the decision in Commonwealth v. Felder, 18 EAP 2018, 2022
Pa.Lexis 184, 2022 WL 529338 (Pa. filed February 23, 2022), which adds
further support to our conclusion that this issue lacks merit. In Felder, the
appellant was a juvenile convicted of first-degree murder and initially received
a sentence of LWOP. See
id.2022 WL 529338 at *4-5. After the filing of
Miller, the appellant was resentenced to serve a term of incarceration of fifty
years to life. See id. at *5. Eventually, our Supreme Court granted allowance
of appeal to address “whether a discretionary term-of-years sentence may be
so long as to amount to a de facto life sentence, thereby triggering the
substantive and procedural protections afforded by Miller and its progeny.”
Id. at *3.
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In reaching its decision, the Felder Court reviewed the current state of
the law since the United States Supreme Court’s decision in Jones v.
Mississippi, 141 S.Ct. 1307 (2021), and concluded that “even if a 50-years-
to-life sentence amounts to a de facto life sentence, there is no Miller problem
here.” Id. at *30 (citation and quotation marks omitted). The Court made the
following summarization of the law:
[I]f a discretionary sentencing scheme is constitutionally sufficient
to permit the imposition of a life-without-parole sentence on a
juvenile homicide offender, so too can a court impose a sentence
that is something less than life without parole. This includes a
term-of-years sentence that may amount to a de facto life
sentence. Stated differently, as long as the sentence was the
product of a discretionary sentencing system that included
consideration of the juvenile’s youth, the Eighth Amendment is
satisfied.
Id. at *30-31. Here, there is no question the minimum term-of-years
sentence imposed upon Harper was the product of a discretionary sentencing
system, which included consideration of his youth. For this reason, too,
Harper’s claim fails.
Harper next argues the imposition of a mandatory maximum sentence
of life is illegal under the United States and Pennsylvania Constitutions.
Specifically, he asserts the sentencing scheme fails to offer an individualized
sentence to a juvenile. Harper further claims that although he may be paroled
at some point, he will remain under extensive monitoring for his lifetime,
which could result in additional incarceration.
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In Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) (Batts I), the
Pennsylvania Supreme Court addressed the sentencing of a juvenile offender
convicted of first-degree murder. Noting that the United States Supreme Court
in Miller declined to place a “categorical ban” on LWOP sentences for juvenile
offenders, the Supreme Court in Batts I held that juvenile offenders convicted
of first-degree murder could be subject to a LWOP sentence only after the
court considered the sentencing criteria outlined in Miller.
Id. at 296-99.
Subsequently, in Batts II, our Supreme Court further examined the
procedure for resentencing juvenile offenders who were improperly sentenced
to life without parole prior to Miller.2 This Court applied Batts II in
Commonwealth v. Seskey,
170 A.3d 1105 (Pa. Super. 2017), and expressly
held Batts II “requires that an individual convicted of first or second-degree
murder for a crime committed as a minor be sentenced to a maximum term
of life imprisonment.”
Id. at 1105-06 (footnote omitted). Likewise, in
Commonwealth v. Blount,
207 A.3d 925, 938-39 (Pa. Super. 2019), a panel
of this Court held the imposition of a mandatory maximum sentence of life in
prison for a juvenile defendant convicted of first-degree murder prior to Miller
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2 We note that Batts II was recently abrogated in part by the United States
Supreme Court in Jones,
141 S.Ct. 1307 (2021). The Jones Court confirmed
that mandatory LWOP sentences for juvenile offenders violate the cruel and
unusual punishment clause of the Eighth Amendment of the United States
Constitution. See
Jones at 1322. However, the Court held that sentencing
schemes that allow the discretionary imposition of life sentences pass
constitutional muster and do not require a separate factual finding of
permanent incorrigibility. See
id. at 1321.
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was constitutional. Similarly, in Commonwealth v. Olds, 192 A.3d 1188,
1197-98 (Pa. Super. 2018), a panel of this Court held that the imposition of a
mandatory maximum sentence of life in prison for a juvenile defendant
convicted of second-degree murder prior to Miller was constitutional.
Accordingly, pursuant to our precedent, the trial court was required to impose
upon Harper a maximum sentence of life.
This Court has previously addressed and rejected Harper’s claim that
this sentencing scheme ignores the requirement that sentences be
individualized. Specifically, this Court has addressed that identical claim and
reaffirmed that trial courts must sentence juveniles convicted of first- or
second-degree murder prior to June 25, 2012, to a maximum term of life
imprisonment under 18 Pa.C.S.A. § 1102(b). See Blount, 207 A.3d 925
(rejecting the claim that a mandatory maximum term of life imprisonment as
applied to juvenile offenders convicted of murder prior to Miller violates the
mandate of individualized sentencing); Commonwealth v. Ligon,
206 A.3d
1196 (Pa. Super. 2019) (holding a sentence with a term of years minimum
and maximum sentence of life does not violate Miller's individualized
sentencing requirement, because it properly leaves ultimate decision of when
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the defendant will be released to the parole board). Accordingly, because we
are bound by our precedent, Harper is not entitled to relief on this issue.3
Harper last argues the trial court abused its discretion in fashioning his
sentence. He asserts the trial court based his sentence mainly upon the
serious nature of the crime and its impact upon the victim’s family. Harper
alleges the trial court ignored his rehabilitative needs and the fact that while
he has been incarcerated for 20 years, he has shown that he is amenable to
additional rehabilitation. Therefore, he contends the trial court failed to
consider pertinent factors in creating his sentence.
Our standard of review is one of abuse of discretion. Sentencing is a
matter vested in the sound discretion of the sentencing judge, and a sentence
will not be disturbed on appeal absent a manifest abuse of discretion.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
It is well settled there is no absolute right to appeal the discretionary
aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa.
Super. 2006). Rather, where an appellant challenges the discretionary aspects
of a sentence, the appeal should be considered a petition for allowance of
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3 To the extent Harper relies upon Songster v. Beard,
201 F.Supp.3d 639
(E.D.Pa. 2016) for support of his argument, this Court has previously
expressly rejected an appellant’s reliance on Songster. See Olds,
192 A.3d
at 1197 n.18 (“[W]e do not agree with Songster and hold that it is not binding
authority in Pennsylvania”).
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appeal. See Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.
2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P.
720; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation and brackets omitted).
Here, the first three requirements of the four-part test are met. Harper
brought an appropriate appeal, raised the issue in a post-sentence motion,
and included in his appellate brief the necessary concise statement of the
reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). We
next determine whether he has raised a substantial question requiring us to
review the discretionary aspects of the sentence imposed.
Whether a particular issue constitutes a substantial question about the
appropriateness of sentence is a question to be evaluated on a case-by-case
basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001). As to what constitutes a substantial question, this Court does not
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accept bald assertions of sentencing errors. See Commonwealth v.
Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). Rather, an appellant must
show actions by the trial court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing process. See
Commonwealth v. Ferguson,
893 A.2d 735, 737 (Pa. Super. 2006).
In his Rule 2119(f) statement, Harper argues the trial court abused its
discretion by failing to consider certain factors pertaining to Harper’s age and
abhorrent childhood, as well as his proven amenability to rehabilitation. See
Appellant’s Brief at 58-59. This Court has found a substantial question exists
where there is an allegation that the sentencing court failed to consider the
factors set forth in 42 Pa.C.S.A. § 9721(b).4 See Commonwealth v. Fullin,
892 A.2d 843, 847 (Pa. Super. 2006) (concluding that the appellant raised a
substantial question where it was alleged that the trial court failed to properly
consider the factors set forth in 42 Pa.C.S.A. § 9721(b)). Therefore, Harper
has raised a substantial question. As such, we will review the merits of
Harper’s sentencing claim.
Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion. See Fullin, 892 A.2d at 847. In this context, an abuse of
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4 The factors to be considered under 42 Pa.C.S.A. § 9721(b) include: the
protection of the public, gravity of offense in relation to impact on victim and
community, and rehabilitative needs of the defendant. See 42 Pa.C.S.A. §
9721(b).
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discretion is not shown merely by an error in judgment. See id. Rather, an
appellant must establish by reference to the record that the sentencing court
ignored or misapplied the law, exercised its judgment for reasons of partiality,
prejudice, bias, or ill will, or arrived at a manifestly unreasonable decision.
See id.
The sentencing judge has broad discretion in determining the proper
penalty, and this Court accords the sentencing court great deference, as it is
the sentencing court that is in the best position to view a defendant’s
character, displays of remorse, defiance, or indifference and the overall effect
and nature of the crime. See Commonwealth v. Walls, 926 A.2d 957, 961
(Pa. 2007) (quotations and citations omitted). As we have stated, “[a] court
is required to consider the particular circumstances of the offense and the
character of the defendant.” Commonwealth v. Griffin,
804 A.2d 1, 10 (Pa.
Super. 2002) (citation omitted). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics and his
potential for rehabilitation.”
Id.
In addition, “[o]ur Supreme Court has determined that where the trial
court is informed by a pre-sentence report, it is presumed that the court is
aware of all appropriate sentencing factors and considerations, and that where
the court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citing
Commonwealth v. Devers,
546 A.2d 12 (Pa. 1988)).
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Our review of the record reflects that, at the time of Harper’s
resentencing, the trial court set forth in painstaking detail the relevant
evidence and exhibits it took into consideration in fashioning the sentence.
See N.T., 9/20/18, at 8-18. This recitation summarized the extensive
testimony and exhibits presented at the four-and-one-half-hour evidentiary
hearing held on August 22, 2018. See N.T., 8/22/18, at 1-175. Importantly,
prior to announcing the judgment of sentence, the trial court gave a detailed
account of Harper’s personal and criminal history, Harper’s rehabilitative
needs, and his positive performance and rehabilitation during his
incarceration. See N.T., 9/20/18, at 15-18. The trial court further elaborated
on its full understanding and consideration of the factors relevant for
imposition of the instant sentence upon Harper in its written opinion. See Trial
Court Opinion, 3/2/21, at 6-8.
We conclude the reasons the trial court offered for the sentence imposed
were more than sufficient to conclude that the court properly considered all
relevant factors in fashioning Harper’s sentence. Also, because the trial court
had been fully informed and relied upon the presentence report, we conclude
the trial court did not abuse its discretion in creating the instant sentence.
Accordingly, Harper’s claim that the trial court failed to consider the
appropriate factors in imposing the sentence lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2022
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